A discussion about issues, appellate decisions, and other news of interest to Kansas defenders. This site does NOT necessarily reflect the opinion or position of the Appellate Defender Office or of the Kansas Board of Indigent Defense Services. Nor does this in any way constitute legal advice or is it even warranted to be remotely accurate! It is intended to be a resource for Kansas defenders and others interested in the criminal justice system in Kansas.

Friday, April 06, 2007

Limon wins again

Janine Cox and Nathan Webb won in State v. Limon, No. 96,013 (Kan. App. April 6, 2007)(unpublished), reversing an aggravated post-release supervision period imposed in this Miami County case on resentencing. This is the latest (and hopefully last) case in a long-running and sad saga. Matthew Limon was originally charged and convicted of criminal sodomy for consensual sodomy with a teenage boy in 2000. Had they been opposite sex, Matthew would have been convicted of unlawful voluntary sexual relations (enacted in 1999) and gotten a maximum of 15 months. As it stood, he received a presuptive sentence of 206 months (just over 17 years).

His direct appeal was docketed by the ADO on September 19, 2000. Dan Estes wrote the brief and Paige Nichols argued the case to the COA after Dan left the ADO for private practice. The ACLU also filed an amicus brief in support of Matthew. The COA affirmed on February 1, 2002, holding that Bowers v. Hardwick governed. The KSC denied review.

Due to the glaring inquity, this case was taking on increasing public notice. Here is a Phoenix.com article relating Matthew's story. And here is The Pitch article about Matthew.

The ACLU filed a cert petition for Matthew and, while it was pending, the SCOTUS decided Lawrence v. Texas, 123 S.Ct. 2472 (2003), overruling Bowers. On June 27, 2003, the SCOTUS granted Matthew's cert petition, vacated the COA decision and remanded with directions to reconsider in light of Lawrence. Here is the New York Times article reporting on the GVR.

So, back to the COA, who reheard the case. On January 30, 2004, in a very fractured opinion, the COA again affirmed Matthew's sentence with one judge holding that Lawrence was factually and legally distinguishable, one judge concurring, and one judge dissenting. Matthew again filed a PR, and this time the KSC granted it.

Several amicus briefs were filed in this case, and the matter was argued to the KSC on August 31, 2004 and on October 21, 2005, the KSC issued a unanimous decision vacating Matthew's sentence:

We hold K.S.A. 2004 Supp. 21-3522 unconstitutional as violating the equal protection provisions of the United States and Kansas Constitutions and strike from the statute the words "and are members of the opposite sex." We further hold that Limon's conviction and sentence for criminal sodomy pursuant to K.S.A. 21-3505(a)(2) violate his right to equal protection of the laws. We further grant Limon's requested remedy of imposing a time limit upon further proceedings in this case and order that the State will have 30 days in which to: (1) charge Limon under the provisions of K.S.A. 2004 Supp. 21-3522 without the words "members of the opposite sex" or (2) take other action.

Here is a Queer Day article reporting on the KSC decision. So finally, Matthew had won. But here we are in 2007, still blogging about his case.

After remand from the KSC, Matthew entered a guilty plea to unlawful voluntary sexual relations. He had already served more than five years on a maximum 15-month prison sentence. You would think this would end matters. Here is a gay.com article reporting before resentencing.

But the state sought and obtained an upward departure on the post-release supervision period from the standard 12-months to 36-months based on the judge's finding that the offense was sexually motivated. Matthew argued that this judicial fact-finding violated Apprendi v. New Jersey. As of today, Matthew has already completed more than 12 months on post-release supervision.

On appeal again, the COA agreed that the enhanced post-release supervision period required additional factual findings, and that the district court supplying those findings violates Apprendi. This really is not a stretch, especially after the recent decision in State v. Allen, (blogged about here), where the KSC held the same thing.

So, maybe Matthew will finally get totally out from under DOC custody in the near future. Only about six years too late.

[Update: the state agreed to not file a PR so issuance of the mandate was expedited and it issued on April 17, 2007]